J-S62031-15

_____________________________

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CIERRA NICOLE GEORGE

Appellant No. 546 WDA 2015

Appeal from the Judgment of Sentence March 3, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0011848-2014

BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 14, 2015

Appellant, Cierra Nicole George, appeals from the judgment of 

sentence entered in the Allegheny County Court of Common Pleas, following 

her bench trial convictions for three counts of driving under the influence of 

alcohol or a controlled substance (“DUI”), and one count each of reckless 

driving, driving vehicle at safe speed, and driving on roadways laned for 

traffic.1 We affirm.

The relevant facts and procedural history of this case are as follows. 

On May 16, 2014, at approximately 1:00 a.m., Trooper Roland 

Shannonhouse was on routine patrol when he received a dispatch to a hit-

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1 75 Pa.C.S.A. § 3802(a)(1), (c); 3736(a); 3361; 3309(1), respectively. 
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and-run crash that occurred near the Squirrel Hill Tunnels in Pittsburgh. 

Upon his arrival on the scene, Trooper Shannonhouse saw one vehicle and 

the driver of the vehicle. Trooper Shannonhouse determined a two-car 

crash had occurred, but the other driver had fled the scene. 

Meanwhile, Corporal Jonathan Rush, who was also on routine patrol 

that morning, received a dispatch to a nearby crash on the ramp of the 

Homestead/Squirrel Hill exit off Interstate 376. The ramp prohibits 

pedestrian traffic and serves solely as access for the highway. Corporal 

Rush observed a disabled dark-colored SUV toward the right side of the 

ramp. The vehicle was obstructing the lane of travel. Corporal Rush saw 

the vehicle had flat front and rear tires and minor damage to the front of the 

car; the damage was significant enough to preclude a driver from continuing 

to drive the vehicle. The only other individuals at the scene were two 

paramedics and Appellant. Corporal Rush approached Appellant and noticed 

she appeared intoxicated. Specifically, Corporal Rush smelled an odor of 

alcohol emanating from Appellant and observed that Appellant was unsteady 

on her feet. Corporal Rush placed Appellant in his patrol car and radioed 

Trooper Shannonhouse for assistance.

When Trooper Shannonhouse arrived on scene, he observed a disabled 

vehicle on the ramp of the highway with front-end damage, rear-end 

damage, and sideswiping damage on the driver’s side. Trooper 

Shannonhouse noticed Corporal Rush, two paramedics, and Appellant were 
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the only individuals present at the accident site. Trooper Shannonhouse 

spoke with Appellant, and Appellant indicated she was en route to her 

residence from a friend’s house. Appellant also said she was unaware she 

had hit anything or anyone. Trooper Shannonhouse saw Appellant’s eyes 

were red and bloodshot, and Appellant was unsteady on her feet. Trooper 

Shannonhouse also smelled alcohol on Appellant. Based on her signs of 

intoxication, Trooper Shannonhouse suspected Appellant was incapable of 

safe driving. Trooper Shannonhouse declined to conduct a field sobriety test 

due to the location of the vehicle and insufficient space on the ramp to 

perform the test. Trooper Shannonhouse arrested Appellant and transported 

her to the hospital for a blood draw. Appellant had a blood alcohol content 

(“BAC”) of 0.233%. 

The Commonwealth charged Appellant with DUI and related offenses. 

On March 3, 2015, Appellant proceeded to a bench trial. At the conclusion 

of trial, the court found Appellant guilty of two counts of DUI—general 

impairment, one count of DUI—highest rate of alcohol, and one count each 

of reckless driving, driving vehicle at safe speed, and driving on roadways 

laned for traffic. 

That day, the court sentenced Appellant to four (4) days at a DUI 

alternative to jail program, and a concurrent period of six (6) months’ 

probation, for Appellant’s DUI—highest rate of alcohol conviction. The court 

imposed no further penalties for Appellant’s remaining convictions. 
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Appellant timely filed a notice of appeal on April 2, 2015. On April 8, 2015, 

the court ordered Appellant to file a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b). Following a grant of extension, 

Appellant timely filed her concise statement on June 25, 2015.

Appellant raises one issue for our review:

DID THE COMMONWEALTH PRESENT SUFFICIENT 

EVIDENCE TO CONVICT [APPELLANT] OF DRIVING UNDER 

THE INFLUENCE OF ALCOHOL?

(Appellant’s Brief at 5). 

When examining a challenge to the sufficiency of evidence:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying [the above] test, we may not weigh the evidence 

and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless 

the evidence is so weak and inconclusive that as a matter 

of law no probability of fact may be drawn from the 

combined circumstances. The Commonwealth may sustain 

its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually 

received must be considered. Finally, the [trier] of fact 

while passing upon the credibility of witnesses and the

weight of the evidence produced, is free to believe all, part 

or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal 

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v. 
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Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)). 

Appellant states she was not in the vehicle when police arrived on the 

accident scene. Appellant argues the Commonwealth presented no evidence 

that she was the registered owner of the vehicle. Appellant asserts the 

Commonwealth provided no eyewitness observations of Appellant sitting 

behind the wheel of the vehicle or even sitting in the vehicle at all. 

Appellant stresses she did not admit she was the driver of the vehicle at any 

time. Appellant emphasizes the Commonwealth failed to present any 

witnesses who actually saw Appellant driving the vehicle. Appellant insists 

her statements to Trooper Shannonhouse were “vague” and could have 

referred to other incidents unrelated to the accident at issue. Appellant 

suggests the probative value of her statements to Trooper Shannonhouse is 

weak because she was intoxicated when she made them. Appellant 

contends her mere presence at the scene was insufficient circumstantial 

evidence of guilt. Appellant concludes the Commonwealth’s evidence was 

insufficient to establish Appellant had actual physical control of the vehicle 

necessary to sustain her DUI convictions, and this Court must reverse her 

DUI convictions and vacate the judgment of sentence. We disagree. 

The Vehicle Code defines the offense of DUI, in relevant part, as 

follows:

§ 3802. Driving under influence of alcohol or 

controlled substance

(a) General impairment.—
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(1) An individual may not drive, operate or be 

in actual physical control of the movement of a 

vehicle after imbibing a sufficient amount of alcohol 

such that the individual is rendered incapable of 

safely driving, operating or being in actual physical 

control of the movement of the vehicle.

* * *

(c) Highest rate of alcohol.—An individual may 

not drive, operate or be in actual physical control of 

the movement of a vehicle after imbibing a sufficient 

amount of alcohol such that the alcohol 

concentration in the individual’s blood or breath is 

0.16% or higher within two hours after the individual 

has driven, operated or been in actual physical 

control of the movement of the vehicle.

75 Pa.C.S.A. § 3802(a)(1), (c). The term “operate” as used in the DUI 

statute “requires evidence of actual physical control of either the machinery 

of the motor vehicle or the management of the vehicle’s movement, but not 

evidence that the vehicle was in motion.” Commonwealth v. Johnson, 

833 A.2d 260, 263 (Pa.Super. 2003). Significantly, “an eyewitness is not 

required to establish that a defendant was driving, operating, or was in 

actual physical control of a motor vehicle. The Commonwealth can establish 

through wholly circumstantial evidence that a defendant was driving, 

operating or in actual physical control of a motor vehicle.” Id. (holding 

Commonwealth presented sufficient evidence to prove defendant was 

driving, operating or in actual physical control of vehicle to sustain his DUI 

conviction where police arrived at accident scene and found vehicle located 

on travel lane on public street behind second car involved in accident; 
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reasonable inference was that defendant drove vehicle to scene; vehicle did 

not suddenly emerge from nowhere onto travel lane of public street behind 

another car that had just been rear-ended; additionally, police arrived on 

scene within short time and saw only defendant and occupants of second 

car, who were still seated in second car; police also observed defendant 

leaning against driver’s side door of vehicle). 

Instantly, the trial court analyzed Appellant’s sufficiency challenge as 

follows:

It is early in the morning on May 16, 2014. [Corporal] 

Jonathan Rush’s radio crackles with a new call—crash 

westbound on 376. He responds to the 

Homestead/Squirrel Hill exit ramp on the downtown 

Pittsburgh side of the Squirrel Hill tunnel. There is a dark 

colored SUV...disabled right in the only lane of travel. It 

cannot be driven as its tires were flat. There was some 

minor damage to the front. A paramedic vehicle is there 

along with [two] medics. Another person is also there—

[Appellant]. [Corporal] Rush approached her. She 

smelled of alcohol. She was not steady on her feet. 

[Corporal] Rush detained her by putting her in the back 

seat of his patrol car and called for help. 

Help arrived in the form of Trooper Shannonhouse. He 

saw [Appellant] and a vehicle parked in the middle of the 

one lane exit ramp. He approached [Appellant]. She told 

[Trooper] Shannonhouse that “she was [en] route to her 

residence coming from a friend’s home on the North Side.” 

[N.T. Trial, 3/3/15, at 22.] She then added that “she was 

unaware that she had hit anything or anyone.” [Id.] She 

was then removed from that patrol car and escorted back 

to [Trooper] Shannonhouse’s vehicle. This transfer 

allowed him to make certain observations. Her walk was 

unsteady. There was a strong odor of alcohol about her. 

Her eyes were red and bloodshot. The dynamics of the 

scene contributed to the lack of field sobriety exercises. 

Within 20 minutes, she was taken from the scene and 
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entered a hospital for a blood draw. That was done and 

the results showed her blood alcohol level to be [0.233%].

As we all know, circumstantial evidence is based upon 

inferences from established facts. A fair and reasonable 

inference to be drawn is that [Appellant] was driving the 

vehicle.... When police arrive they see a car in the middle 

of an exit ramp that can’t be driven away. It will need [to 

be] towed. There is one person there who is being 

attended to by paramedics. That person is approached 

and asked what happened. Her response [implies] that 

she was driving the now disabled car. ... 

(Trial Court Opinion, filed July 21, 2015, at 2-3). Additionally, at the 

conclusion of trial, the court expressly stated it found Corporal Rush and 

Trooper Shannonhouse’s testimony credible. We see no reason to disrupt 

the court’s determination as fact-finder. See Hansley, supra. Viewed in 

the light most favorable to the Commonwealth as verdict-winner, the 

evidence was sufficient to prove Appellant was driving, operating, or in 

actual physical control of the vehicle to sustain her DUI convictions. See 

id.; Johnson, supra; 75 Pa.C.S.A. 3802(a)(1), (c). Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2015